This matter came before the Bellingham Hearing Examiner for hearing on the 24th day of May 2013 on the appeal of the decision of the Whatcom Humane Society Director's decision to require the mandatory neutering of Gary Winkler's male dog, Teddy Jr.
Testimony was received from Gary Winkler, Appellant; and Laura Clark, Whatcom Humane Society Director. Mr. Winkler was represented by Attorney Aaron Lukoff. Director Clark appeared telephonically.
In addition to the Bellingham Municipal Code, the following documents were considered as part of the record: Gary Winkler's letter of appeal of Animal Control Hearing which is undated; May 16, 2013 decision letter from Laura Clark to Gary Winkler; Owner/Guardian Contract dated May 9, 3013 Whatcom Humane Society signed by Gary Winkler; Whatcom Humane Society Mandatory Spaying or Neutering Notice signed by Gary Winkler dated May 9, 2013; Letter to Whatcom Humane Society appealing mandatory neutering signed by Gary Winkler undated; and seven photos with diagram of Appellant's back yard.
Mr. Winkler withdrew his "Affidavits of Prejudice" that he had filed on May 17, 2013.
This decision was announced orally at the conclusion of the hearing on May 24, 2013.

I. FINDINGS OF FACT / CONCLUSIONS OF LAW

On May 9, 2013 an approximately three-year-old male Alaskan Malamute dog, Teddy Jr., was impounded by the Whatcom Humane Society, acting as the animal control authority for the City of Bellingham, after it was contacted by a citizen regarding a stray dog that had been found at large on Holly Street in Bellingham. The dog was picked up by the Humane Society and transported to its facility. The dog is owned by Gary Winkler, the Appellant. He redeemed the dog on May 9, 2013 after paying impound fees and signing a redemption form that advised him that the Bellingham Municipal Code provides for mandatory spay/neuter of unaltered dogs after the second impound of the animal within a 12 month period. Teddy Jr. was also issued a dog license and tag at that time.
On May 12, 2013 Teddy Jr. was again impounded by the Whatcom Humane Society after he was found running at large, unattended, at the Bloedel Donovan dog park. An animal control officer responded and transported the dog to the Humane Society facility. Teddy Jr. was not wearing his license tag or any other identification at that time. Mr. Winkler was informed that Teddy Jr. would be neutered prior to release because this impound was the second one within a 12-month period. Mr. Winkler appealed the mandatory alteration requirement to the Humane Society Director as provided in BMC 7.08.090.
On May 16, 2013 Director Clark issued a determination regarding Mr. Winkler's appeal of the mandatory neutering requirement. Her letter states that she considered Mr. Winkler's appeal letter and the lengthy phone conversation she had with him on May 15, 2013. Citing the facts of the two impounds on May 9th and May 12, 2013 and the provisions of BMC 7.08.090 she denied the appeal and informed Mr. Winkler of his right to appeal to the Hearing Examiner pursuant to the Code provision.
Mr. Winkler submitted photographs of his property to support his contention that he was not responsible for allowing his dog to be at large. He states that he has had a long-standing dispute with a neighbor who has been arrested for physically assaulting him and who otherwise harasses him, damaging his property and making threats. He states that his property is securely fenced and that he believes the neighbor in question deliberately opened a gate to allow Teddy Jr. to escape the yard. He states that he was away from home for only a short period of time and came home to discover that the dog was gone. He indicates that the two escapes, which occurred a couple days apart, are the only times that the dog has been at large. He also states that he has padlocked the gates to prevent anyone from opening them to allow the dogs to escape. He has two other dogs on the property. They remained on the property when the gate was opened.
Mr. Winkler states that Teddy Jr. is a pure-bred rare strain of Malamute that he wishes to breed for its rare qualities. He states that the dog is just now reaching the age when it can be certified and bred. He indicates that he spent a great deal of money to create Teddy Jr.
BMC 7.08.090 provides that the animal control authority may determine that the owner has shown good cause to excuse the circumstances leading to the impoundment of the dog and release it without alteration. If good cause is found the animal control authority may condition the return of the dog in an unaltered state upon the owner's fulfillment of reasonable conditions designed to avert future incidents. The Hearing Examiner reviews the decision of the Director to determine if it is arbitrary or capricious.
In this case, the Director's decision recites the circumstances of the impounds. The Director does not indicate whether she found the Appellant's statements regarding responsibility for the dog's escape to be credible. She also did not have an opportunity to see the photographs submitted at the hearing before the Hearing Examiner or to hear the more detailed testimony of the Appellant regarding the circumstances.
The Appellant is entitled to a hearing that satisfies due process requirements prior to deprivation of a property interest in his dog. It appears that the Director duly considered the evidence presented to her, however, she did not have the benefit of all of the evidence that was presented to the Hearing Examiner.
Based on the evidence presented it is clearly plausible that Teddy Jr. was at large due to circumstances beyond the control of Mr. Winkler on May 9, 2013. Teddy Jr. had not escaped prior to that date and Mr. Winkler had no reason to expect that he would be let out without his permission while he was away from home for a short period of time. Due to the long history of harassment from the neighbor it is reasonable to conclude that the neighbor may have opened the gate as part of the pattern of harassment. There is good cause to excuse the circumstances of the first impound, on May 9, 2013.
After the first escape Mr. Winkler was on notice that the property was not secure and that Teddy Jr. could escape the yard. The padlocks were apparently not in place at the time of the second impound on May 12, 2013. The Director's determination to not excuse the circumstances of the impoundment on May 12, 2013 is not arbitrary and capricious, even if the dog's escape was primarily the result of actions of a neighbor and not those of Mr. Winkler. The impound on May 12, 2013 should be considered the first impound for purposes of BMC 7.08.090.

II. ORDER

There is good cause to excuse the circumstances of the impound on May 9, 2013 for purposes of BMC 7.08.090. The impound of Teddy Jr. on May 12, 2013 shall be considered the first impound. A second impound within a 12-month period shall result in application of the mandatory neutering provisions of BMC 7.08.090 unless good cause to excuse the circumstances is shown.
Teddy Jr. shall be released in an unaltered state upon payment of the fees and charges applicable to the impound and boarding of the dog, provided that the Whatcom Humane Society may condition the release upon Mr. Winkler's fulfillment of reasonable conditions designed to avert future incidents and compliance with any other applicable provisions of BMC Chapter 7.08.